A Word of Advice on Andrew Tridgell's Patent Defence

Like many, I admire Andrew Tridgell's work, most importantly his achievements on Samba. His presentation nicely illustrates some of the fallacies when programmers, lawyers and patent attorneys try to communicate.

That being said, this text also contains such fundamental errors to make it not only misleading but dangerous to Free Software.

2. If you're not using ALL elements of an independent claim you can't be infringing the claim in question.

3. Therefore, you're on the safe side. If we manage to do check claim elements on a larger "open source" scale, Free Software will live happily ever after and software patents won't be a big problem anymore.

Now I'm aware that Andrew is from Australia and that's how things might work there - I simply don't know.

However, regarding those countries where software patents are currently the the biggest danger, i.e. the U.S.A., the European Union and Japan, Andrew's assumptions are plain *wrong*.

For starters, please check out the Wikipedia entry on the doctrine of equivalents:

Like the U.S. Supreme Court said in GRAVER MFG. CO. v. LINDE CO., 339 U.S. 605 (1950):

"One who seeks to pirate an invention, like one who seeks to pirate a copyrighted book or play, may be expected to introduce minor variations to conceal and shelter the piracy. Outright and forthright duplication is a dull and very rare type of infringement. To prohibit no other would place the inventor at the mercy of verbalism and would be subordinating substance to form. It would deprive him of the benefit of his invention and would foster concealment rather than disclosure of inventions, which is one of the primary purposes of the patent system."

What this all boils down to is that you indeed have to read (and understand) all claims, consider what the patented invention does as a whole and evaluate if your solution achieves the same.

If it does, you are very likely infringing even if your solution does not use all claim elements. That's one of the main reasons why software patents are so dangerous and happily coexisting with them is a much more complex issue than Andrew's talk suggests.

December012009

Another (weak) Defense of Software Patents (and its rebuttal)

Depending on your taste, you might find that it contains some nice rhetoric. But right from the start, it gets the most basic facts wrong, e.g: "Although the Supreme Court has previously stated that software is patentable subject matter"

No, that's not what the Supreme Court said. What the Supreme Court actually did say was that processes are patentable and that only because Software is involved in a solution this doesn't necessarily exclude it from patentability in all cases. But, whenever an algorithm is involved in such a solution it has to be treated as prior art, i.e. it cannot be claimed (let alone patented) alone.

What he doesn't mention though is one of the most important and basic differences between hardware and software: For Hardware you need to buy parts, you need to carefully plan and build something, and if you do anything wrong, things will break and you'll have to buy new parts, and build the thing again. Only 2% of the population are engineers and patent law is supposed to be limited to them.

Software on the other hand can be written by anyone and reusing,

combining and refining it continuously is one of it's most basic properties. Ever tried to bolt a plane and a ship together? And would you expect the result to fly and swim? Or to be just an embarrassing bulk of stuff that'll likely explode right in your face?

Well, with software, you do it every day. Bolt together a web server and a database, and here you have your information management system. Bolt together a file browser and an image viewer, bingo, that's your digital photo library. And so on. That's the difference between hardware and software: Hardware is built by engineers, software is written. Therefore, patents for hardware, copyright for software.

Still, Goetz insists that Software should be patented because "software product companies are high technology manufacturing entities", "more similar to engineers than writers". He just states that without really elaborating it and supposes we should take it at face value - after all he's the guy who's proud of having gotten the first software patent in the history of the U.S. so he can't be biased, can he?

But let's just think about this for a moment. How is software created in such companies? And how is a blockbuster in Hollywood created? All that CGI... digitaly filmed, edited, distributed and projected. A movie is a product to. And where's the newspaper that hasn't got a website, these days? Should plotlines for films be patented too, just because Hollywood is an Industry? Should news items be "protected" by patents?

And so here's what he concludes:

"It is obvious that software products are not “software ideas”[...]"

Well, that's just irrelevant and distracting. But what actually is relevant is that any Software consist of algorithms (and only algorithms).

And further:

"I believe the Courts should view software as a component of a general purpose computer (a machine) and that software transforms a general purpose computer into a special purpose computer (or machine)."

That belief is wrong. Although one might feel tempted to agree to the first half of it to some limited extent at least, the second part is nothing more than an arbitrary assumption and its conclusions are borderline absurd. Depending on your definition of "part", Software (i.e. Algorithms) might indeed be seen as a part of a general purpose computer.

But it definitely is not a part which "transforms a general purpose computer into a special purpose computer": Only because you install a word processor on your Laptop it doesn't become non-general all of a sudden - you still can use it to surf the internet, sent mail, listen to music, watch videos and do an infinite amount of other general purpose stuff. Just like a film projector isn't becoming a "special device for displaying a story involving a guy dressing up as flying rodent" only because the theater owner choose to show the Batman movie tonight.

And that's exactly why the Supreme Court stated already that an algorithm has to be treated as prior art in patent law. It's just that his view has been distorted by the USPTO and lower courts ever since the State Street case.

No, the Bilski case is not about the Supreme Court reversing what he said in the past - it is about reaffirming it and putting the lower courts back on track, thereby plainly and simply ensuring law and order in patent law again.

July302009

USPTO has done it again, here's claim 1. of a wonderfully inventive patent:

"A method for providing episodic media, the method comprising: providing a user with access to a channel dedicated to episodic media, wherein the episodic media provided over the channel is pre-defined into one or more episodes by a remote publisher of the episodic media; receiving a subscription request to the channel dedicated to the episodic media from the user; automatically downloading updated episodic media associated with the channel dedicated to the episodic media to a computing device associated with the user in accordance with the subscription request upon availability of the updated episodic media, the automatic download occurring without further user interaction; and providing the user with: an indication of a maximum available channel depth, the channel depth indicating a size of episodic media yet to be downloaded from the channel and size of episodic media already downloaded from the channel, the channel depth being specified in playtime or storage resources, and the ability to modify the channel depth by deleting selected episodic media content, thereby overriding the previously configured channel depth."

July272009

Big Brot^H^H^H IBM has applied for an US (software)patent on a "solution for tracking email dispersion through content substitution. In the solution, a set of entities to receive an email can be identified, where the email can contains textual content. A subset of words contained within the textual content can be programmatically selected. A set of replacement words for each of the determined words can be determined. For each email receiving entity, at least one replacement word can be programmatically substituted for it's equivalent to generate an entity specific message." In other words: Be careful about what you forward.